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PROGRESSIVE REALTY ADVISORS, INC. v. GREAT-WEST LI

December 12, 1991

PROGRESSIVE REALTY ADVISORS, INC., an Illinois corporation (also known as PROGRESSIVE REALTY ASSOCIATES, INC., Plaintiff,
v.
THE GREAT-WEST LIFE ASSURANCE COMPANY, Defendant.


Williams


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

Plaintiff Progressive Realty Advisors, Inc. ("Progressive") brought this suit against defendant The Great-West Life Assurance Company ("Great-West"), seeking the recovery of real estate brokerage commissions and the value of services rendered with respect to certain properties owned by the defendant. Progressive claims that it possessed exclusive listing agreements and an independent contractor agreement with Great-West to sell or lease several of Great-West's properties. The plaintiff claims that in several instances the defendant refused to sell the properties to purchasers procured by the plaintiff. The defendant now moves this court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint for a failure to state a claim for which relief can be granted. For the reasons stated below, the court grants the defendant's motion.

 Background

 According to the allegations in the complaint, Great-West is a life insurance company which buys and sells real estate for investment purposes. Of particular interest in this case, Great-West owns several properties commonly described as: 1) 1500 N. Plum Grove Road ("Plum Grove property"), Schaumburg, Illinois, 2) 1200 E. Devon Avenue, Elk Grove Village, Illinois ("Elk Grove property"), 3) 17170 Westview Avenue, South Holland, Illinois ("South Holland property"), and 4) several lots in Woodfield Business Center ("Woodfield Business Center properties").

 On or about May 20, 1988, Progressive presented Great-West with an offer from Bankers Trust Company ("Bankers Trust") to buy the Plum Grove property for $ 2,285,000. On or about the same date, Progressive presented Great-West with a second offer from Bankers Trust to buy the South Holland property for $ 2,030,000. On or about May 25, 1988, Progressive presented Great-West with a third offer from Bankers Trust to buy the Elk Grove property for $ 2,400,000. Great-West rejected each offer and told Progressive that it was withdrawing the properties from the market. Great-West subsequently sold the parcels to another party for $ 1,178,000 less than the total of the three offered prices procured by Progressive. Progressive has not been paid commissions for the sale of these properties.

 On December 1, 1982, the defendant and the plaintiff entered into an independent contractor agreement ("the Agreement") whereby Progressive became the full-time marketing director for the defendant's properties in the Woodfield Business Center. Under the Agreement, as with the other agreements, Progressive was to act as Great-West's exclusive agent to sell the defendant's Woodfield Business Center properties and Great-West was to refer all inquiries regarding the properties to Progressive. Progressive was to receive a real estate commission of six percent.

 Progressive alleges that it acquired Montgomery Ward and Company as one of Great-West's prospective tenants for these properties. The parties contemplated building a shopping center, which would include a Montgomery Ward store, on several of Great-West's lots. Progressive also procured an offer to buy several of Great-West's properties in the Woodfield Business Center from John Mathias and Henry Giotis for approximately $ 3,961,490. Great-West rejected this offer and subsequently sold the properties to First Western Development Corporation for the same price as Mathias and Giotis had offered. The defendant then sold its remaining interest in the Woodfield Business Center to Kasmar Corporation ("Kasmar"). Great-West has refused to pay Progressive commissions for the sales of these properties.

 Finally, Great-West allegedly requested that Progressive solicit United Airlines ("United") to lease space in a building to be built by Great-West. The defendant agreed to pay Progressive for its time, expenses, and efforts in this venture. Following negotiations with the plaintiff, United indicated its willingness to lease space from Great-West. Great-West did not pay Progressive for its work on the prospective United lease. As part of its sale of its interest in the Woodfield Business Center, Great-West assigned any rights it might have to a lease with United to Kasmar.

 After Great-West refused Progressive's demands for payment, Progressive brought this action to recover its alleged commissions. Progressive claims that it is entitled to broker's fees and real estate commissions, pursuant to its exclusive listing contracts and the independent contractor agreement, for the sales of Great-West's properties. Progressive also claims that it is entitled to recover for the time, expenses, and effort expended in procuring the United lease. The defendant now moves to dismiss this action because the complaint fails to state a claim for which relief can be granted.

 Federal Rule of Civil Procedure 12(b)(6) permits a defendant to attack an action based upon the sufficiency of the pleadings, rather than on the merits of the claim alleged. Fed. R. Civ. P. 12(b)(6). The Supreme Court has stated that a complaint cannot be dismissed for a failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 In order to survive a motion to dismiss, a claimant need not set out the facts of his or he claim in detail. Id. at 47. The plaintiff is only required to provide a "short plain statement of the claim" that gives the defendant fair notice of that claim and the grounds upon which it rests. Id. While the complaint must be construed liberally, the modern criteria of notice pleading does not alter the requirement that the plaintiff must allege each essential element required to show violations of the laws claimed. United States v. Employing Plasterers Ass'n., 347 U.S. 186, 189, 98 L. Ed. 618, 74 S. Ct. 452 (1953).

 To survive a motion to dismiss in this case, the plaintiff must allege sufficient facts to demonstrate that it is entitled to compensation. Arthur Rubloff and Company v. Drovers National Bank of Chicago, 80 Ill. App. 3d 867, 400 N.E.2d 614, 619, 36 Ill. Dec. 194 (1980). Defendant Great-West claims that Progressive does not state a valid claim for compensation in Count I because the allegations therein fail to demonstrate that Progressive could produce a ready, willing and able buyer. To establish a prima facie case for compensation, a plaintiff must show:

 
that he produced a prospective purchaser who agreed to the sellers' terms, who was continuously willing to purchase during the time of the relevant negotiations and who became able to execute a contract upon the agreed terms at a reasonable time subsequent to the initial negotiations. Kenilworth Realty Co. v. Sandquist, 56 Ill. App. 3d 78, 371 N.E.2d 936, 941, ...

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